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Matthew Hrna

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Writing Sample

Making Sense of Federal Campaign Finance Reform:

An Overview of Legislation, Litigation, and Structural Flaws

by Matthew Hrna

Historically, Americans have perceived their government as being run by big money, special
interests, and corruption, but few actually know of the many reforms that have been put into place and
the very stringent regulations governing campaign practices. From early American life to the present
day, Congress has heard and addressed the public’s calls for reform. Meanwhile, many complications
arose in the courts as a result of loopholes from earlier laws. The complex issue of campaign finance
reform can be understood by looking at the many different challenges the United States government has
faced as it progressed along the continual road of reform.

Legislation

Legislative reforms, beginning in 1867 and continuing to the present, are critical to the present
state of campaign finance laws. Early reform laws, such as the Tillman Act, the Federal Corrupt
Practices Act, and the Taft-Hartley Act, must be understood as the foundation for current campaign
finance laws. After the foundation was laid by laws dealing with specific topics, complete campaign
finance legislation followed in laws, such as the Federal Electoral Campaign Act and its several
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amendments. The culmination of campaign finance reform resulted in the Bipartisan Campaign Reform
Act.

Early Reform

In the early America of the late 1700s and early 1800s, campaign finance laws were irrelevant
because most federal offices were appointed, and those that were elected had a very small voter base
since only property-owning, white males could vote. For the few elected offices, the most common
campaign tactic was to give food or alcohol to the voters, as George Washington did when he was
running for the Virginia House of Burgesses and gave every voter a quart of rum (Smith 18). As voting
eligibility expanded, candidates spent more money on campaigns. To help solidify his financial support,
President Andrew Jackson used the spoils system, giving jobs in the administration to party loyalists or
financial contributors. As a result of this practice, Congress enacted the 1867 Pendleton Act which
required applicants for federal jobs to pass competitive examinations so jobs would be awarded on
merit, not on party or candidate loyalty (Billitteri). A former Federal Election Commissioner, Bradley
Smith, points out that the Pendleton Act was crafted “to protect government employees from the power
of government officials,” not “legislators or the government from the corrupting influence of
contributions,” a quality which separates this act from the many campaign finance laws to follow.
(Smith 20).

Since the parties were now banned from using the financing provided by the spoils system, they
turned to corporate contributions. In fact, by 1888, 40% of the Republican National Committee’s
financing came from corporations (Smith 23). Senator Benjamin Tillman successfully helped pass the
1907 Tillman Act, barring direct corporate contributions, because he said that Americans had come to
believe that Congressmen had become the “instrumentalities and agents of corporations” (“Evolution;”
qtd in Smith 24). A loophole became evident when companies began reimbursing their CEOs to give
“personal” contributions to campaigns. As a result, the campaign finance system shifted from
corporation funding to wealthy CEO and large labor union backing (Billitteri).

With continued cries for reform during the progressive movement, Congress passed the first
disclosure bill, the 1910 Publicity Act, which required post-election disclosure of campaign
contributions for the House of Representatives (Billitteri; “Evolution”). It required disclosure in election
years of contributions of $100 or more and of expenditures of $10 or more (Smith 24). In 1911,
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Congress passed amendments to place spending caps on all campaign expenditures, limiting House
candidates to $5,000 and Senate candidates $10,000 (Billitteri). In Newberry v. United States, discussed
below, the Supreme Court dealt a shocking blow to the bill by ruling the federal regulation of primary
campaigns unconstitutional, which left the Publicity Act only regulating the general and non-primary
special elections (“Evolution”).

In the early days of 1924, the public began to hear about the Teapot Dome Scandal. President
Harding’s Secretary of the Interior, Albert Fall, was able to convince the Secretary of the Navy to give
him control of a Navy oil lease. Fall then secretly lent the lease to oil corporations in exchange for
kickbacks totaling $404,000 (Bates). Oilman Harry Sinclair had given legal contributions in the non-
election off-year to avoid having it disclosed under the Publicity Act (Smith 26). After lengthy
investigation, the Supreme Court ruled that the oil companies corruptly obtained the leases, Fall was
fined and imprisoned, and the lease was given back to the Navy (Bates). In response, Congress passed
the 1925 Federal Corrupt Policies Act (“Evolution”). It closed this loophole by requiring reporting in
off-years and by enforcing disclosure on contributions of $100 or more, regardless of when the money
was received. In addition to the reporting, the FCPA mandated that “unless prohibited by his state,” the
candidate might spend $10,000 or the amount attained by multiplying each voter of the previous election
by three cents, not to exceed $25,000. Furthermore, the FCPA forbade candidates from promising a
position to a person for his or her vote, and made it unlawful to pay people to either vote or to withhold
their vote (“Action” 103). However, because the law solely referred to the “candidate” and not the
candidate’s committee which usually managed the account, the FCPA was largely ineffective (Smith 27;
Billitteri).

During Franklin Roosevelt’s presidency, many allegations surfaced that he was requiring the
public works employees of his New Deal to give to his campaign fund. To counter this, Congress
expanded the Pendleton Act to create the 1939 Hatch Act, which prohibited contributions from federal
employees or federal contractors to federal officials (Smith 27). The Hatch Act’s main purpose was to
make it “unlawful for any person to intimidate, threaten, coerce, or to attempt to threaten, or coerce” a
person from exercising the right to vote. Furthermore, it prohibited federal employees in administrative
positions from influencing elections by contributing to or soliciting funds for a candidate (“Action”
102). In addition, employees of the Executive Branch were banned from actively participating in
political campaign management, being a member of a party, or contributing to or soliciting for a
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candidate. In 1940, the Hatch Act was amended to expand the ban on political contributions to
employees of state agencies that accepted federal funding (“Action” 104). If any of the employees of
such an agency violated this law, the federal government would withhold the federal funding until the
employee was fired and was not allowed to work at any other state agency with federal funding
(“Action” 106).

Under the Republican-controlled Congress of 1943, the War Labor Disputes Act (Smith-
Connally Act) was passed, which banned normally Democratic labor unions from contributing to
political campaigns throughout the duration of the war (“Evolution”). By 1947, the Republicans had
made impressive gains in Congress, and they were able to make the ban on labor union funding
permanent in the Labor Management Relations Act (Taft-Hartley Act). Quick to find a loophole, the
unions established the first political action committees, or PACs. Employees and members would give to
the PAC when they paid their dues because an automatic check was put in the “optional” box for an
employee to commit to contributing (Smith 28).

In 1966, public financing of the Presidential election was passed in the Campaign Fund Act with
the goal of decreasing money’s influence on campaigns and increasing the focus on issues (Tax Check-
off Law). The act gave a “tax credit of one-half of the taxpayer’s political contribution up to $12.50 per
year” (qtd. in “Main Features” 37). In addition, it added a check box to income tax returns where
taxpayers could choose to give one dollar to the Presidential Election Campaign Fund. Since all
candidates and parties did not have equal standing, a system was established that designated three
categories of public funding: major parties, minor parties, and new party candidates. While the major
party candidates would receive fifteen cents per eligible voter, third party candidates would receive
money according to a complex distribution formula. Since expenditure caps were placed on the major
party candidates, privately-raised money combined with the federal financing could not exceed that
limit. The minor and new parties could raise up to the major parties’ expenditure cap in addition to
receiving public financing (“Main Features” 37).

Comprehensive Campaign Finance Legislation

Seeing campaign expenditures soar from $155 million in 1956 to $300 million in 1968, the
public was again crying for reform to stop what they perceived as big money, once again, taking over
their representatives (Billitteri). In response, Congress passed a sweeping campaign finance bill, the
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1971 Federal Election Campaign Act, which largely replaced the Federal Corrupt Practices Act (Smith
31). Because a large portion of campaign spending was on media, Title I of the bill required media
outlets to give discounted pricing to candidates and their committees during the forty five days before a
primary and sixty days before a general election. In addition, Title I capped media spending for
Congressional candidates at $50,000 or ten cents per registered voter, and stipulated that only 60% of
expenditures could go to broadcast media. Presidential candidates were restricted to the spending limits
in each state equal to that of the state’s U. S. Senators. Title II acted as a series of amendments by
limiting the candidate’s personal spending, abolishing maximum contribution and expenditure limits,
and strengthening the ban on corporate and labor union contributions (“Main Features” 37-8).
Furthermore, Title III required disclosure of all candidate campaign committees or PAC spending over
$1,000 (“Evolution”). Disclosure requirements mandated that each committee or PAC have a treasurer
to document all contributions of $10 or more and expenditure of $100 or more. The detailed report to the
Comptroller General required the bank account balance, the name and address of contributors or payees
of $100 or more, and the total of un-itemized contributions or expenditures less than $100. Finally,
Article IV largely repealed the Federal Corrupt Policies Act, establishing FECA as the dominant
campaign finance law (“Main Features” 38).

Since the 1971 FECA was ambiguous about disclosure between the last required filing of the
Federal Corruption Practices Act and the first filing of FECA, many campaigns assumed none was
needed. During the Watergate investigations in 1973, President Richard Nixon’s campaign took this
stance, but a court order followed which exposed Nixon Campaign payments to the vandals who
participated in the Watergate burglary (Smith 31). In fact, one columnist argued that the public wanted
action so badly that “anything that is called a political campaign reform bill is automatically deemed
deserving of applause” (qtd. in Gillon 206). Because of this abuse, Congress passed the FECA
amendments of 1974 establishing an independent agency, the Federal Election Commission, to manage
the disclosure filings and to enforce regulations (“Federal”). The FEC was to consist of two members
appointed by the President and four appointed by Congress. With much union lobbying, Congress also
added a provision recognizing PACs as legal entities in campaign finance law. When lobbying to protect
their PACs, the labor unions never expected corporate PACs to be established, or that by 1974,
corporate PACs would comprise two-thirds of the total number of PACs. One union lobbyist said later
that “the way things have turned out since, the labor movement would have been better off politically
with no PACs at all on either side” (qtd. in Gillon 213). In addition, individual contribution limits were
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set to $1,000 per Federal campaign and PACs to $5,000. Neither PACs nor individuals could give more
than a total of $25,000 in an election year (Gillon 208). Also, spending limits for the House were set to
$75,000 and limits for the Senate were set at $250,000 to be increased by the number of voters in the
Senator’s state (Smith 33).

In 1976, after the Supreme Court ruled in Buckley v. Valeo that expenditure caps on a candidate’s
committee or on a third party committee were unconstitutional, Congress went back to work amending
FECA to comply with the court’s decision (Billitteri). With the revised legislation, Congress abolished
the spending caps and changed individual contribution limits for PACs from $5,000 to $15,000 (Gillon
211). In 1978, the FEC issued an advisory opinion allowing state parties to abide by their own state
campaign finance laws on Get Out the Vote Drives and voter registration (Billitteri). Also, in 1979,
Congress amended FECA not only to reflect this advisory opinion, but also to extend it to the national
parties, to simplify disclosure filings, and to increase the public funding option to the national
nomination conventions (“Evolution”).

Although the Federal Election Campaign Act was unprecedented in its regulations, it also fell
victim to loopholes, record amounts of money spent on campaigns, and eroding public favor. As a result
of the 1979 amendments, federal candidates began fundraising to enlarge state parties’ coffers with
unregulated contributions, “soft” money, which could be spent on Get Out the Vote and voter
registration drives in contested federal races (Gillon 223). In 1995, the Federal Election Commission
issued an advisory opinion allowing political parties to use soft money on issue advertising (Billitteri).
As a result, even more candidates began soliciting for soft money on behalf of their party. For example,
in 1996, President Bill Clinton accepted spending limits on public financing for the Presidential election,
but raised soft money for the Democrat National Committee and Democrat state parties to spend money
on his behalf for issue advertising. The Washington Post declared that “the DNC became an extension of
the Clinton-Gore campaign,” allowing Clinton to receive advertising of $44 million over the public
financing caps (Gillon 225-6). Besides the problems with Presidential public financing, total
Congressional spending had skyrocketed from $128.1 million in the 1989-1990 cycle to $318.4 million
in the 1999-2000 cycle.

Bipartisan Campaign Reform Act


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With the public once again seeing Washington, D.C., as being run by big money interests and
corporate soft money contributions, a movement began for broad-based campaign finance reform. For
example, “Granny D” Haddock, a ninety-year-old woman, walked, skied, and climbed 3,200 miles from
Los Angeles to Washington, D.C (Run Granny Run). When she arrived, she walked up the steps of the
Capitol and said, “The people I met along my way have given me a message to deliver here: Shame on
you, Senators and Congressmen, who have turned this headquarters of a great and self-governing people
into a bawdy house” (qtd. in Cooper 259). Additionally, forces were growing in both the House and the
Senate for reform. In 1999, a campaign finance bill passed the House and went to the Senate with
Senator John McCain as its chief advocate, but it failed because of a filibuster led by Senator Mitch
McConnell (Billitteri 26). Another factor contributing to public awareness was Senator McCain’s failed
2000 bid for the Republican Presidential nomination, where his campaign message was centered on
campaign finance reform (Cooper 259).

Because of the calls for reform, Senators Feingold and McCain went back to work on a
campaign finance resolution that was viable to pass. As the Bipartisan Campaign Reform Act (McCain-
Feingold) took the stage in 2001, Senator McConnell stood on the Senate floor and affirmed, “If
McCain-Feingold becomes law, there won’t be one penny less spent on politics, not a penny less. In
fact, a good deal more [will be] spent on politics” (Billitteri). Despite Senator McConnell’s protest,
BCRA passed in 2002. The two main purposes of the act were to stop the flood of soft money into
national party committees and to eradicate the partisan attack ads masked as “issue ads” and funded by
unions and corporations (Billitteri).

Recognizing the need to revise hard money contribution limits, the BCRA raised the individual
contribution limit per federal candidate to $2,000 with indexing for inflation, raised the individual
contribution limit for state parties to $10,000 per year and national parties to $25,000, and raised the
total federal two-year individual contribution limit to $95,000. Foreseeing the possibility that parents
might try to funnel extra money through their children, the BCRA also prohibited children under
seventeen from donating to candidates or parties. Additionally, national parties’ limits on contributions
to a campaign were raised to $35,000, also with indexing for inflation. An interesting “Millionaire’s
Amendment” was added that changed the contribution limits based on how much the other candidate
uses self-financing. In Senate races, when one candidate uses his personal wealth for more than
$150,000 + $.04 per eligible voter, the contribution limits of the candidate’s opponent are raised based
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on the amount of the candidate’s personal spending minus that of the opponent. The limits can be raised
as much as six times the norm and allow for candidate/party coordinated spending. In House races, the
threshold is $350,000, and, if the limit is reached, the candidate’s opponent’s contribution limits are
tripled, including allowances for candidate/party coordinated expenditures (Cantor 2-3).

To address the masked “issue ads,” BCRA mandated specific disclosure rules for independent
expenditures expressly advocating the election or defeat of a federal candidate. For expenditures of at
least $1,000 up to $10,000, the FEC required notice within 24 hours, and for expenditures of $10,000 or
more, the FEC required notice in 48 hours. To further curb these issue ads, Congress made it illegal for
national parties to both participate in coordinated expenditures with a campaign and to make
independent expenditures on the campaign’s behalf (Cantor 4). In addition, Congress declared that all
coordinated expenditures count as contributions, meaning that coordinated campaigning could not
exceed $5,000 per candidate (Cooper 7, United 5). One exception to the $5,000 limit was that a party
could use the individual expenditure route and use a complex expenditure limit formula based on
population with limits up to $67,650 for House races and $1.6 million for Senate races (McConnell).
Later, in 2001, Federal Election Commission v. Colorado Republican Campaign Committee, all limits
on party expenditures were ruled unconstitutional. Furthermore, BCRA banned advertisements that
mentioned a specific federal candidate or were targeted to a specific population within 60 days of a
general election and 30 days of a primary (Campaign Finance Institute 248). It did allow for non-profit
groups such as 527s or 501(c)4s to be exempt from this ban as long as their ads were not targeted and
were paid for by contributions received from individuals, not soft money (Cantor 11). In addition, the
legal ads that were produced in the correct time periods were required to include the name of the sponsor
for at least four seconds (Cantor 16).

Besides regulating the contributions and issue advertising, the Bipartisan Campaign Reform Act
also regulates the use of soft money. To address the soft money loophole that plagued the Federal
Election Campaign Act, the BCRA banned national parties from using or soliciting soft money on behalf
of another entity. In contrast, the Levin Amendment allowed state and local parties to use soft money on
Get Out the Vote activities or voter registrations, providing that the money was from contributions
limited to $10,000 (Jost “Campaign;” Campaign Finance Institute 248). The BCRA also required state
parties to comply with federal contribution limits for federal election activities such as voter
identification and advertisements mentioning a federal candidate (Campaign Finance Institute 247). In
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addition, the act restricted federal candidates and elected officials from soliciting soft money for the
state and local parties and from soliciting for money that is in excess of the federal contribution limits
(Cantor 8). Although federal candidates or officials cannot solicit soft money on behalf of state and local
parties, they can attend state fundraisers as a guest or a speaker as long as they do not solicit funds
(Campaign Finance Institute 249).

The most recent change in BCRA occurred on January 21, 2010, in the Supreme Court’s 5-4
ruling in Citizens United v. Federal Elections Commission that corporations and labor unions may spend
money directly from their treasury accounts for the purpose of funding “electioneering communications”
(Citizens United). Prior to this decision, corporations and labor unions were not allowed to spend money
directly campaigning, unless they funneled money through a PAC. While some, including President
Barak Obama, say that this decision will cause a ‘flood’ of corporate and labor money into elections,
that is not certain (Ross). Since both parties had already been able to have PACs which spend money
campaigning, the number of PACs might just decline as corporations and labor unions shift political
operations to the companies and unions themselves. On the other hand, the amount spent on campaigns
by these parties might increase, since it will be easier for corporations and labor unions to spend directly
rather than having to manage a PAC.

Litigation

Just as understanding campaign finance legislation is important for one to grasp the concept of
campaign finance reform, so is having knowledge of the litigation that has continually shaped the realm
of campaign finance. Newberry v. United States was critical in the development of the campaign finance
precedents because it determined that the federal government cannot regulate state primaries. United
States v Classic was significant to Supreme Court precedence because it overturned Newberry v. United
States In Buckley v. Valeo, the Supreme Court struck down limits on campaign expenditures, but upheld
limits on contributions. McConnell v. FEC upheld most of the Bipartisan Campaign Reform Act.
Because of Wisconsin Right to Life, Inc. v. FEC, the provision of BCRA that banned issue advertising
within sixty days of a general election and thirty days of a primary was overturned. Another provision of
the BCRA, the “Millionaire’s Amendment” was overturned in Davis v. FEC. Citizens United v. FEC
overturned the ban on corporations and labor unions from spending money directly on campaigning.
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Newberry vs. United States

One of the first major Supreme Court cases concerning campaign finance reform was Newberry
v. United States (1921), which dealt with the Publicity Act of 1910 (“Evolution”). Truman Newberry
was convicted of violating the provision of the Publicity Act which put limits on primary spending
(Savage). The Constitutional question that Newberry’s conviction brought before the Supreme Court
involved Article 1, Section 4, “whether under the grant of power to regulate ‘the manner of holding
elections’ Congress may” set limits on spending and contributions for the primary election. To begin his
argument in the majority opinion, Justice McReynolds defined the clause’s use of “election” when he
said that primaries “are in no sense elections for an office but merely methods by which party adherents
agree upon candidates whom they intend to offer and support for ultimate choice by all qualified
electors.” Additionally, he addressed the historical meaning of the clause which gave power to Congress
to regulate the manner of the elections. To aid his argument, he referenced the state legislatures’ original
ability to elect two Senators to represent their respective states and the power given to legislatures in
Article 1, Section 4 to regulate the “times, places and manner of holding election for Senators and
Representatives.” Because of the legislatures’ powers in the Senate elections, the original clause allowed
Congress to “at any time by law make or alter such regulations, except as to the places of choosing
Senators.” Justice McReynolds concluded that a primary is a preliminary selection process before a
general election, but that the “selection is no . . . part of the manner of holding the elections.” In a 5-4
decision, the Supreme Court held that the court “cannot conclude that authority to control party
primaries or conventions for designating candidates was bestowed on Congress by the grant of power to
regulate the manner of holding elections” (Newberry v. United States). As a result, Truman Newberry’s
conviction was overturned, the Publicity Act’s provision to regulate primaries was stricken, and a
precedent that Congress does not have the authority to regulate primaries was established (Savage).

United States vs. Classic

The Court’s decision in Newberry v. United States was challenged and overturned in United
States v. Classic (1941). The Commissioner of Elections in Louisiana, Patrick Classic, appealed after
being charged in federal court with tampering with the ballots in the state primary election, and in 1941
his case reached the Supreme Court in United States v. Classic. In his defense, he argued that the
precedent set by Newberry v. United States dictated that Congress cannot regulate primary elections,
thus making his conviction null and solely a matter of state law (Finkelman). The court was left to
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decide “whether the right of qualified voters to vote in the Louisiana primary and to have their ballots
count is a right ‘secured . . . by the Constitution.’” In Louisiana’s Second Congressional District where
the votes were altered, the Democrats dominated, so their primary had virtually become the equivalent
of the general election. In the majority opinion, Justice Harlan Stone noted that the Louisiana Secretary
of State was prohibited by state law from placing a candidate on the general election ballot that lost in a
bid for the nomination in the primary. Because of this primary dependency on the general election,
Justice Stone added, “the right of qualified voters to vote at the Congressional primary and to have their
ballots counted is thus the right to participate in that choice.” In addition, the court ruled that the
Constitution regulates elections even if a particular state “changes the mode of choice from a single step,
a general election, to two, of which the first is the choice at a primary of those candidates.” Since the
court now ruled that the Constitutional word “election” can be a one or two step process, Congress now
had the power to enforce regulations on state primaries. Commissioner Classic’s conviction was thus
upheld (United States v. Classic).

Buckley vs. Valeo

Shortly after the 1971 Federal Election Campaign Act’s amendments were passed in 1974, they
were challenged in the Supreme Court by lead plaintiff Senator James Buckley, resulting in Buckley v.
Valeo. The chief argument of the plaintiffs was that the 1974 amendment limits on campaign
expenditures and contributions were an infringement of free speech, as provided by the First
Amendment. In addition, the plaintiffs charged that the public financing program established in 1971
discriminated against minority parties because the requirements made funds harder to receive and
therefore violated the First Amendment. To begin, the court established that there was a “clear and
compelling government interest” in protecting the honor of the electoral structure. In addressing the
issue of limiting campaign expenditures, the per curium opinion declares that:

A restriction on the amount of money a person or group can spend on political


communication during a campaign necessarily reduces the quantity of expression by
restricting the number of issues discussed, the depth of their exploration, and the size of
the audience reached. . . . The expenditure limitations contained in the Act represent
substantial . . . restraints on the quantity and diversity of political speech.
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Although the court ruled that limits on campaign expenditures violate the First Amendment, the court
upheld limits on contributions as constitutional, saying that, in contrast to limits on expenditures,
contribution limits are “only a marginal restriction upon the contributor’s ability to engage in free
communication.” In addition, the opinion argues the amount is not as relevant as the “symbolic act of
contributing . . . [which is] an index of intensity of the contributor’s support for the candidate.” Also, the
court took into account that contributions are critical for the candidate or committee to amass the
resources for the expenditures protected by the First Amendment-, but found that the limitations from
the Federal Election Campaign Act would not have any severe impact on the candidate or committee’s
funding. In the court’s ruling, the court struck down limits on campaign expenditures, but upheld limits
on contributions (Buckley).

A further issue of campaign expenditures was that of organizations funding advertisements on


behalf of specific federal candidates. The FECA sought to regulate these groups’ spending to stop the
flow of soft money from regulated campaigns to unregulated groups that could spend on their behalf.
Although the government had tried to prevent a loophole for soft money by limiting expenditures by
groups spending “relative to a clearly identified candidate,” the court said, “the plain effect . . . is to
prohibit all individuals . . . , and all groups, except parties and campaign organizations, from voicing
their views.” Because of the First Amendment infringement, the resulting ruling was that the
government’s “interest in preventing corruption and the appearance of corruption is inadequate to justify
[the] ceiling on independent expenditures.” Similar to the limits on independent and personal
expenditures was the limit on the candidate’s expenditures from his personal funds. Just as the court
ruled for independent expenditures, it also ruled that a candidate has the same rights as an individual and
that “the prevention of actual and apparent corruption” is not sufficient to restrict the First Amendment
right to advocate on one’s own behalf by spending personal funds (Buckley v. Valeo).

The Supreme Court denied the plaintiffs’ claims that public financing for Presidential elections
was a violation of the First Amendment. The Justices first pointed out that financing does not prohibit a
candidate from getting on the ballot or prohibit voters from casting ballots for their preferred candidates.
Since the public financing systems required a candidate to have a certain number of private
contributions from across the nation, the court disagreed with the plaintiffs and ruled that “the inability,
if any, of minor party candidates to wage effective campaigns will derive not from lack of public
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funding but from their inability to raise private contributions.” Additionally they state that the system
has “not unfairly . . . burdened the political opportunity of any party or candidate” (Buckley v. Valeo).

The last issue addressed in Buckley v. Valeo by the court was that of FECA’s enacting of the
Federal Election Commission. The appointment of members to the commission was an area of particular
concern. According to the FECA, Congressional leadership was to appoint four members, the Secretary
of the Senate and the Clerk of the House were to appoint two, and the President was to appoint two. The
Supreme Court brought into question the Constitution’s provision in Article 2, section 2: “[The
President] shall nominate . . . Officers of the United States whose appointments are not herein . . .
provided for . . ., but Congress may . . . vest the appointment of such inferior offices . . . in the President
alone, in the Courts of law, or in the Heads of Departments.” In defining “Offices of the United States,”
the court associated it “with all persons who can be said to hold an office under the government.” As a
result, the court concluded that neither Congressional leadership nor officers of the Congress are
equivalent to either the courts of law or heads of departments, and thus it was unconstitutional for
Congress to appoint members to the FEC. Furthermore, the appointment authority of Congress was ruled
“novel and contrary to the language of the Appointments Clause.” In the end, the court struck limits on
campaign expenditures by independent groups and candidates, ruled unconstitutional the appointment
process for the FEC, and upheld the public financing system for the President and limits on individual
contributions (Buckley).

McConnell vs. Federal Election Commission

One of the most recent and most important rulings on campaign finance laws came from
McConnell, United States Senator v. the Federal Election Commission. The Bipartisan Campaign
Reform Act had been challenged by a group of cases, which were consolidated into one case with
Senator McConnell as chief plaintiff. This case questioned whether the Act violated the First
Amendment by infringing on free speech. When preparing to defend Senators McCain and Feingold’s
Act, McCain’s lawyer did not want to argue with the weakness of the previous precedent, that the
government has a compelling interest in regulating corruption or the “appearance of corruption,” but
rather with the strength that the government was regulating actual corruption. After being asked by the
lawyer whether there can be “an appearance of corruption and in fact no reality of it,” McCain
responded that “yes, there can be, but . . . it doesn’t matter because what the American people care about
is not only whether things actually happen, but whether they believe things are happening” (qtd. in
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Cochran, “Campaign Finance: Debate”). As a result, the case would once again focus on “the
appearance of corruption.” The court’s ruling upheld most of the BCRA as constitutional except
provisions were ruled unconstitutional which required parties to choose between coordinated spending
or independent expenditures and those which banned minors under 17 from contributing to a campaign.

Under BCRA, parties could chose to use solely unlimited independent expenditures, which
allowed for express advocacy, or to use solely coordinated campaign expenditures, without express
advocacy and with limits (McConnell). In Federal Election Commission v. Colorado Republican
Campaign Committee, the court ruled that parties have the constitutional right to spend unlimited funds
supporting their candidates and struck that provision of the law, leaving the complicated formula for
party financing only to apply to coordinated expenditures. Because of this, a party could choose the
coordinated expenditure option and work hand-in-hand with a campaign providing what they need, but
the party has a limit of spending $1.6 million, a provision for no “express advocacy,” and a limit of
$5,000 on independent expenditures. In contrast, working with independent expenditures involved no
coordination with campaigns, allowed parties to spend unlimited funds, and allowed them to expressly
advocate for a candidate’s election. In the majority opinion, Justice Stevens and O’Connor said that this
was “the [party’s] forfeiture of the right to make independent expenditures for express advocacy.”
Furthermore, the BCRA required that “all political committees established and maintained by a national
political party and all political committees established and maintained by a state political party shall be
considered to be a single political committee” (qtd. in McConnell from BCRA §441 a(d)(4)(B)).
Because of this, the decision to choose independent or coordinated expenditures “resides solely in the
hands of the first mover.” Therefore, if a local party had independent expenditures over the $5,000 limit,
the whole party (the RNC/DNC, state parties, etc.) would be bound to use only independent
expenditures. The court agreed with District Court in ruling this unconstitutional.

In another provision of BCRA, minors under 17 were restricted from contributing to a campaign
because Congress felt that otherwise parents’ money could flow around the limits through their children.
Although this may be considered a “compelling government interest,” the court affirmed that minors are
protected by the First Amendment and that the government “offers scant evidence of this form of
evasion.” In addition, the court argued that this loophole would already be covered by federal law under
FECA, which “prohibits any person from ‘mak[ing] a contribution in the name of another person’ or
‘knowingly accept[ing] a contribution made by one person in the name of another.’” Since these
15

provisions do not pass the narrow tailoring prong of the strict scrutiny test, the Supreme Court ruled that
prohibiting minors from contributing to a campaign is unconstitutional (McConnell).

As a result of this ruling, the Supreme Court upheld all of BCRA provisions except the
requirement that parties chose between coordinated and independent expenditure and the provision that
prohibited minors from contributing to a political campaign. In dissent of this decision upholding most
of BCRA, Justice Scalia, who wanted all of BCRA ruled unconstitutional, called it “a sad day for the
freedom of speech,” and said that the Act “prohibits the criticism of Members of Congress by those
entities most capable of giving such criticism loud voice” (McConnell). Additionally, Justice Rehnquist
said that the precedent set in the previous case of Buckley v. Valeo “does not give Congress the power to
‘regulate willy-nilly’ any political contributions” (Jost “McConnell”).

Wisconsin Right to Life, Inc. v. Federal Election Commission

The provision upheld in McConnell v. Federal Election Commission which prohibited


“electioneering communications,” or ads mentioning a federal candidate in the days before an election,
was challenged in 2006 by Wisconsin Right to Life, Inc. v. FEC and in 2007 by FEC v. Wisconsin Right
to Life (Jost, “Wisconsin” and “Federal”). In 2006, the Wisconsin Right to Life, a non-profit
corporation, wanted to run several issue television ads within sixty days of an election, which was
prohibited by BCRA. They argued that restricting their advertisements would unconstitutionally prohibit
them from engaging in their right of “grassroots lobbying.” The district court ruled that the McConnell
v. FEC decision does not allow for exceptions (Jost, “Wisconsin”). In 2006, the Supreme Court
disagreed, saying that the district court “incorrectly read a footnote in our opinion” and that as-applied
challenges are allowed. After establishing that McConnell v. FEC allowed as-applied challenges to the
BCRA provision regulating issue advertising, the Supreme Court remanded the case to the district court
to decide on Wisconsin Right to Life’s as-applied challenge (Wisconsin Right). Many saw this as a
move to postpone the case until the next session, giving the replacement for Sandra Day O’Connor time
to get comfortably settled (Jost “Wisconsin”).

In 2007, when the district court ruled that the electioneering communications ban on the
Wisconsin Right was unconstitutional as-applied to their particular appeal, the FEC immediately
appealed to the Supreme Court, resulting in the 2007 case of FEC v. Wisconsin Right to Life. In the
majority opinion, Chief Justice Roberts first looked at the fact that WRTL admitted that their ads were
16

prohibited by BCRA, but that “under strict scrutiny, the government must prove that applying BCRA to
WRTL’s ads furthers a compelling interest and is narrowly tailored to achieve that interest.” So, if an ad
is express advocacy, then BCRA applies, but if the ad is not, then the government must “demonstrate
that banning such ads during the blackout period is narrowly tailored to serve a compelling interest.”
While the court ruled in the past that is the government had a compelling interest in “preventing
corruption and the appearance of corruption,” this principle was applied only to uphold contribution
limits. Also, McConnell v. FEC justified “the regulation of express advocacy to ads that were the
‘functional equivalent’ of express advocacy.” In contrast, Justice Roberts and the court ruled that “issue
ads like WRTL’s are by no means equivalent to contributions and the quid-pro-quo corruption interest
cannot justify regulating them” (Federal Election Commission). As a result of this act, issue ads were
exempted from BCRA, including corporation and labor-union issue ads (Jost, “Federal”).

Davis v. Federal Election Commission

One of the more current Supreme Court cases concerning campaign finance came out in 2008 in
Davis v. Federal Election Commission. As a self-funded candidate for the House of Representatives,
Jack Davis had to comply with the BCRA provision many call the “Millionaire’s Amendment” (Davis v.
FEC). Davis had not properly filed one of the post-election notices, so the FEC brought significant fines
against him, but Davis appealed to the Supreme Court. The provisions in the Millionaire’s Amendment
established the “Opposition Personal Funds Amount” (OPFA) which is a maximum of $350,000 until
extra regulations go into effect. The OPFA compared two candidates’ personal spending and, to a small
degree, their fundraising efforts. If this amount exceeded the limit of $350,000, then the self-financed
candidate’s opponent had contribution limits raised as much as three times the norm, coordinated party
expenditures were removed, and individuals were allowed to give despite having already reached their
aggregate contributions cap. Within fifteen days of entering the race, a self-financing candidate had to
give the FEC a declaration of intent to use personal money and state how much the candidate anticipated
spending over the $350,000 cap. In addition, the self-financing candidate must give notice 24 hours
before he broke the cap, and afterwards, file every time he spent $10,000 from his personal funds. The
non-self-financing candidate was held responsible to review the reports by his opponent and submit his
own when he believed the self-financed candidate had passed the cap. At issue was whether the
government could fulfill the “compelling government interest” prong of the strict scrutiny test to
regulate self-financing candidates and whether the extra disclosures are constitutional.
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Although a compelling government interest had been established in Buckley v. Valeo as


“preventing the corruption and the appearance of corruption,” it was left to the court to decide if this
corruption interest applied to the Millionaire’s Amendment. In the majority opinion, Justice Scalia
referenced the corruption interest when making the point that “far from preventing these evils, ‘the use
of personal funds,’ we observed, reduces the candidate’s dependence on outside contributions and
thereby counteracts the coercive pressures and attendant risk of abuse to which . . . contribution
limitations are directed.” Additionally, Justice Scalia brings to light the fact that the Millionaire’s
Amendment required a “candidate to choose between the First Amendment right to engage in unfettered
political speech and subjection to discriminatory fundraising limitations.” In their holding, the court
ruled that the burdens imposed by the Amendment are not justified by “any government interest in
eliminating corruption or the perception of corruption.” In contrast, however, the government argued
that their interest was not only in preventing corruption, but also in “level[ing] electoral opportunities for
candidates of different personal wealth.” Scalia rejected this notion by declaring it “antithetical to the
First Amendment” and said that Congress’s supposed interest was “dangerous” in its attempt “to use
election [law] to influence the voters’ choices.” Since the government interest behind the Millionaire’s
Amendment had been ruled unconstitutional, it followed that the amendment itself and the disclosure
requirements were also unconstitutional (Davis).

Citizens United vs. Federal Election Commission

The most recent Supreme Court decision occurred on January 21, 2010 in the case of Citizens
United v. Federal Elections Commission. During the 2008 primary season, a non-profit corporation,
Citizens United, was producing an anti-Hillary Clinton movie called Hillary and wanted to advertise its
premiere on pay-per-view. The FEC, however, prohibited the advertisements because they ruled them
express advocacy. Citizens United lost its case in Washington D.C.’s Federal District Court, so it
appealed to the Supreme Court, where an argument was tailored attacking BCRA’s ban on corporate
campaign spending, arguing that the ban infringed on the right to free speech. Ultimately, the court
struck down the ban because of an undue burden on free speech. In the majority opinion, Justice
Kennedy noted that the free speech of media corporations cannot be dismissed simply because they are
corporations. Specifically, he noted that “differential treatment of media corporations and other
corporations cannot be squared with the First Amendment.” Furthermore, in a concurring opinion,
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Justice Scalia pointed out that the First Amendment was written in terms of the speech itself, not
speakers.

Problems, Loopholes, and Possible Solutions

Besides understanding the legislation and litigation, it is also important to look at the problems
and loopholes caused by the current campaign finance laws and possible future legislation to address
these problems. The Federal Election Commission has been accused by some as lacking authority and
has been subject to partisan politics. The outdated Public Financing system has lead to many candidates
not using it anymore, and it is underfunded. As a result of the BCRA, non-profit, non-FEC-regulated
527 groups have arisen to funnel money to campaigns. Another phenomenon of the BCRA is the
occupation of “bundling,” which is a helpful fundraising occupation to boost candidates fundraising
abilities.

Federal Election Commission Gridlock

As a result of partisan politics, the six-member FEC was left without the quorum of four
members during the 2008 election, so it could not hear or rule on any ethics complaints (Cadei). The
first problems arose when President Bush nominated Hans von Spakovsky, who was despised by Senate
Democrats. The Senate Republicans filibustered and refused to vote on each nominee individually, as
the Democrats wanted, insisting that they be voted on as one slate. Because of the partisan gridlock in
the Senate, the FEC was left helpless for the 2008 Presidential campaign. Controversy erupted when
President Bush ousted the sitting Chairman, David Mason, who had criticized some of the McCain
campaign finances. Bush chose a new nominee to replace him, and he too was added to the Senate fight.
To remedy this problem, some have proposed replacing the FEC with a new organization, the Federal
Election Administration. It would consist of a three-member panel with the chairmen serving a ten-year
term and the other two members serving six-year terms and coming from different parties. In contrast to
the FEC, the FEA would actually have the ability to make legal rulings regarding to election law and to
enforce penalties (Billitteri).

Weak Public Finance System


19

Another problem that has arisen from current finance law is the weakness of the 1976 Public
Financing system. In fact, the public financing spending restrictions per state have not been adjusted
since 1976 to take into account the importance of the early primary states, such as Iowa and New
Hampshire. As a result, many candidates are reluctant to accept public financing for the primary. In
addition to tight spending limits in critical states, many argue that the funds are not available early
enough to wage an effective campaign (Panagopoulos 13).

In the general election, the $84.1 million provided can be easily overtaken by campaign costs,
and the opponent’s fundraising can easily out-raise the $84.1 million without using public financing
(Billitteri). Although George W. Bush became the first to refuse public financing in the primary, that
legacy continued in the 2008 Presidential campaign as neither McCain nor Obama accepted it in the
most recent Presidential election (Cadei). In the third quarter of 2007 for the primary, Obama raised
$80.3 million, almost more than public financing provided for the general election. In contrast, McCain
had only raised $32 million (Panagopoulos 12-13). In fact, in January and February of 2008, Obama
raised $91 million, clearly showing his ability to raise more than he could gain using public financing.
Since Obama already had, in the primary, outraised the amount he would have been allocated for the
public financing, there was little reason for him to take public financing for the general election. One
proposal addresses the problems with the public financing system by raising the spending caps per state
for the primaries. Some politicians also suggest creating an “escape hatch” so if one candidate rejects
the financing, the one who accepted public financing would have time to back out. Changing the
“income tax check off” law is another possibility to raise the voluntary check off limits and better
finance the system (Panagopoulos 13).

527s

One of the first loopholes that has resulted from BCRA is the rise of 527 groups. While BCRA
has been successful in banning soft money in parties and candidate committees, non-profit 527 groups,
regulated by the IRS only, have arisen. These groups accept soft money and spend unlimited amounts of
money in independent expenditures (Billitteri). There has not been a general trend toward increasing 527
spending on the Presidential races. For example, in 2004, 527s were estimated to have spent $600
million, but in 2008, they were estimated to have spent only $424 million (Panagopoulos 12; Fredreka).
While the result of BCRA in the Presidential election has been to encourage small donation funding
(from 24% small donation funding pre-BCRA to 43% small donation funding post-BCRA), BCRA has
20

had the opposite effect on Congressional races where the shift has been from 20% pre-BCRA to 13%
post-BCRA. Although the 527s have had less of an impact on the presidential races, their larger
donations have shifted to Congressional races, resulting in the decrease in small contributions
(Billitteri). Seeing the issue caused by 527s, the House sponsors of BCRA, Representatives Shay and
Meehan, introduced the 527 Reform Act that passed the House in 2006 but was not passed by the
Senate. By requiring the 527s to register as political committees instead of non-profits, out of regulation
by the FEC the 527 Reform Act would extend the same regulatory laws that apply to all other political
committees (Factsheet).

Bundling

One of the more interesting phenomena that has arisen from the contribution limitations of
$2,400 for individuals and $5,000 for PACs is a process called “bundling.” Because candidates only
have so many connections and official fundraisers, they have been hiring people on the basis of their
connections. These bundlers are very well connected, and must be, because their job is to go to their
friends soliciting money for a candidate. Although this may be beneficial to the candidates, sometimes it
backfires. Such was the case when one of Hillary Clinton’s bundlers, Norman Hsu, raised nearly
$850,000 but had to return all of the money when it was brought to light that Hsu had been charged with
grand theft (Knight). Bundling is growing so quickly that bundled contributions accounted for nearly
28.3% of the average candidate’s fundraising in 2008, compared with 18.2% in 2004 (Panagopoulos 12-
13).

Conclusion

Another option that is used in many states is deregulating the campaign finance system. Many
Republicans and Libertarians lean in this direction, and some point out that the two states to receive the
highest rating for government management from Congressional Quarterly were Virginia and Utah, both
of which lack contribution limits (Cochran, “Campaign Finance’s Deregulation”). Additionally, political
scientists have yet to find evidence that politicians give favors in return for donations. In fact,
Panagopoulos asserts that “money can buy access to a politician, but it rarely guarantees an outcome.”
Surprisingly, one of the chief proponents of deregulation is a former Federal Election Commissioner,
21

Bradley Smith, who asked, “[A]fter nearly a hundred years of trial and error, is it time to ask, ‘will
anything work?’” (Smith 38).

Not only have the laws and resulting loopholes been critical to the development of the current
campaign finance system, but so have the many precedents set by the Supreme Court. Long after the
first campaign finance law in 1867, Americans are still skeptical of their government. With the
Bipartisan Campaign Reform Act leaving problems with the FEC, continually soaring campaign costs,
public financing of Presidential elections, 527s, and “bundlers,” only time will tell if any of the
proposals to address them will result in improved public trust.

BIBLIOGRAPHY

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Buckley v. Valeo. No. 75-436. Supreme Ct. of the United States. 30 Jan 1976.

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24

Precis:

Throughout the course of American history, federal campaign finance regulations have undergone
numerous reforms both in Congress and in the Supreme Court. Each modification came with loopholes
and structural flaws which in turn motivated new revisions. This paper summarizes the key
developments in campaign finance reform, analyzing the causes and effects of major legislation and
litigation and concluding with several flaws that remain prevalent in regulations today.

Bio:

Matthew Hrna, a junior at Baylor University, is double-majoring in Math and Economics with a minor
in Political Science. He is active in local politics, having participated in a campaign for state
representative Ken Legler in his hometown of Pasadena, Texas. He also founded the Baylor College
Republicans during the 2008-2009 academic year and served as the president. In the future he plans to
attend graduate school and earn a PhD in economics.